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ACS Law claims to be subject to 'public scrutiny'

8 February 2011

Cases brought by ACS Law on behalf of Media CAT over allegedly illegal file sharing are to be given full judicial scrutiny after the patents county court refused an application to discontinue.

Andrew Crossley, the sole practitioner behind ACS Law, made the application through his counsel Tim Ludbrook on 25 January, saying he had been the object of bomb threats and wanted to stop all file sharing enforcement work.

Last week he reportedly closed down his firm but the SRA is still to be officially notified of the firm’s closure.

Refusing to allow the notices of discontinuance, Judge Birss QC said they would be an abuse of process and would give both Media CAT and ACS Law an “unwarranted collateral advantage” in that they would avoid judicial examination of their behaviour.

The judge pointed to the agreement between ACS Law and Media CAT under which the firm received 65 per cent of the revenues generated from writing out letters to suspected infringers, before adding: “Media CAT’s financial interest is actually much less than that of ACS Law. Whether it was intended to or not, I cannot imagine a system better designed to create disincentives to test the issues in court.”

He continued: “Media CAT and ACS Law have a very real interest in avoiding public scrutiny of the cause of action because in parallel to the 26 court cases, a wholesale letter-writing campaign is being conducted from which revenues are being generated. This letter-writing exercise is founded on the threat of legal proceedings such as the claims before this court.”

Unpicking the applicants’ approach, the judge said the claims were based on “untested legal and factual propositions and issues of technology” and that the letter sent to thousands of consumers “materially overstates the untested merits of Media CAT Ltd’s approach”.

“Why take cases to court and test the assertions when one can just write more letters and collect payments from a proportion of the recipients?” he asked.

He also commented on the involvement of GCB Ltd, a separate company which momentarily collected the sums claimed by Media CAT.

“The GCB episode… was nothing more than a last ditch attempt to make some money from the letter-writing exercise,” he said.

Michael Forrester, a partner in the IP/IT team at Ralli, who acted for some of the defendants, said it was important that discontinuance was properly obtained so no collateral advantage could be obtained against the defendants by anyone not a party to the proceedings.”

The firm has also been contacted by about 250 individuals who received letters from ACS Law and is considering a possible harassment claim against the firm.

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